Bravos v. Green

• Decision Date: 03 March 2004
• Docket Number: Civil Action No. 00-1615 (RBW).
• Citation: 306 F.Supp.2d 48
• Court: U.S. District Court — District of Columbia
• Parties: Amigos BRAVOS, Plaintiff, v. Richard GREEN, Regional Administrator, Region VI, United States Environmental Protection Agency, et al.,<SMALL><SUP>1</SUP></SMALL> Defendants.

306 F.Supp.2d 48

Amigos BRAVOS, Plaintiff, v. Richard GREEN, Regional Administrator, Region VI, United States Environmental Protection Agency, et al.,¹ Defendants.

Civil Action No. 00-1615 (RBW).

United States District Court, District of Columbia.

March 3, 2004.

COPYRIGHT MATERIAL OMITTED

Ari Micha Wilkenfeld, Bernabei and Katz, PLLC, Washington, DC, Mary-Lynn Sferrazza, Matthew Bishop, Western Environmental Law Center, Taos, NM, for Plaintiff.

Eileen T. McDonough, U.S. DOJ-Environmental Defense Section, Washington, DC, for Defendants.

MEMORANDUM OPINION

WALTON, District Judge.

This lawsuit involves the issue of whether, pursuant to the Clean Water Act, 33 U.S.C. §§ 1251-1387 (2000), the Environmental Protection Agency's ("EPA") alleged approval of the State of New Mexico's implementation plan regarding the attainment of Total Maximum Daily Loads ("TMDLs"), was arbitrary and capricious. Currently before the Court are the parties' motions for summary judgment. Concluding that there has been no final agency action in this matter, the Court will grant the defendants' motion and dismiss plaintiff's complaint.

I. Factual Background

Resolution of the issues presented in this case, although not requiring an extensive analysis of the intricacies of the Clean Water Act's regulatory scheme, "requires a familiarity with the history, the structure, and alas, the jargon of the federal water pollution laws." Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir.2002) (quoting Natural Res. Def. Council v. EPA, 915 F.2d 1314, 1316 (9th Cir.1990)). The Court will therefore begin its discussion with a brief overview of the statutory provisions at issue in this case.

A. The Regulatory Scheme

Congress passed the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act ("CWA" or "Act"), in 1972 with the goal of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. In furtherance of this objective, Congress declared that a "national goal" of the CWA would be to eliminate "the discharge of pollutants into the navigable waters ... by 1985." Id. § 1251(a)(1). The EPA has responsibility for enforcing the Act. Id. § 1251(d).

There are two potential sources of pollution that the EPA's regulatory program targets: point sources and nonpoint sources. A point source is defined in the Act as "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). Examples of such sources are pipes, tunnels, or wells. Friends of the Earth v. EPA, 333 F.3d 184, 186 n. 2 (D.C.Cir.2003). Although the term nonpoint source is not defined in the Act, "it is generally defined by exclusion to mean any pollutant source other than a point source, including, for example, runoff from agricultural fields." Defendants' Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Cross Motion for Summary Judgment ("Defs.' Opp'n") at 4 (citing National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165-66, 176 (D.C.Cir.1982)).

Point sources were addressed in the 1972 amendments to the Act, wherein Congress prohibited the discharge of any pollutant from a point source into certain waters unless the discharge complied with the strict requirements of the Act. See 33 U.S.C. §§ 1311(a), 1311(b)(2). This approach focuses on technology-based controls to limit the amount of pollutant discharge through the utilization of the EPA's National Pollution Discharge Elimination System ("NPDES") permit program. 33 U.S.C. § 1342. The NPDES permit program, applicable only to point sources, "is the principal means for implementing both the technology-based regulations and the water quality standards." Defs.' Opp'n at 7 (citing 33 U.S.C. § 1342(a); other citation omitted). NPDES permits limit the amount of pollutant that can be discharged by a point source and are federally enforceable. Id.

Although the technology-based point source program was intended to be the primary means for controlling water pollution, because solely targeting point source pollution was insufficient to restore certain rivers, streams or smaller bodies of water, the Act also utilizes a water-quality based approach, which first "originated in the Water Quality Act of 1965, Pub.L. No. 89-234, 79 Stat. 903." Defs.' Opp'n at 5. This approach involves assigning each body of water "a specific water quality standard and that standard establishes the level of pollution that can be present in the waterbody, regardless of the source of pollution." Id. at 4-5.

Nonpoint source pollution is primarily regulated by the States through the water-quality approach. Defs.' Opp'n at 7 (citations omitted). Section 303(d) of the CWA requires each State to identify and rank those waters within its boundaries where technology-based controls are inadequate to attain quality water standards. 33 U.S.C. § 1313(d)(1)(A). Such substandard waters are termed "water quality limited segments" ("WQLSs") and are listed on a State's § 303(d) list. Defs.' Opp'n at 8; 40 C.F.R. § 130.7(b). The State must submit documentation to its EPA Regional Administrator supporting its decision to list, or not list, waters on its § 303(d) list. 40 C.F.R. § 130.7(b)(6). For each body of water identified on its § 303(d) list, the State must establish the body's total maximum daily load ("TMDL"). Id. § 130.7(c)(1). Simply stated, "[a] TMDL is the maximum amount of a pollutant that can be added to a waterbody (its "loading capacity") without exceeding water quality standards." Defs.' Opp'n at 1 (footnote omitted); see also 40 C.F.R. § 130.2(i).² Each TMDL must "be established at [a] level [ ] necessary to attain and maintain the applicable narrative and numerical [water quality standards,("WQS") ], with seasonal variations and a margin of safety [taking] into account any lack of knowledge concerning the relationship between effluent limitations[³] and water quality." 40 C.F.R. § 130.7(c)(1).

Each state is required to submit to its EPA Regional Administrator its 303(d) list and the corresponding TMDLs for the bodies of water enumerated on the list. 33 U.S.C. § 1313(d)(2). The EPA is required to either approve or disapprove the bodies of water identified by the States and their corresponding TMDLs. Id."If the [EPA] Administrator disapproves such identification[s] and load[s], he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters...." Id. Regardless of whether the EPA approves a State's 303(d) list and loads or establishes its own list and loads for the State, the CWA requires the state to incorporate this list and the designated loads into its current planning process ("CPP"). Id.

Unlike NPDES permits, TMDLS are not federally enforceable. Defs.' Opp'n at 11 (citation omitted). Rather, to encourage compliance, the EPA may "use federal grants to encourage the States to address nonpoint source pollution and accomplish the loading reductions established in a TMDL." Id. (citing 33 U.S.C. § 1288(f)). The EPA has authority, however, to institute a civil action against any polluter, whether from a point source or nonpoint source, "upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment" to human health or welfare. 33 U.S.C. § 1364; Defs.' Opp'n at 10 n. 7. On July 13, 2000, the EPA issued proposed regulations that would have revised the TMDL process. Defs.' Opp'n at 13. These regulations would have, inter alia, redefined a TMDL to include eleven elements, one being an implementation plan. Id. at 14 (citing 65 Fed.Reg. at 43,662). The revised regulations would also have required States to provide "reasonable assurances," which was defined as "a demonstration that TMDLs will be implemented through regulatory or voluntary actions[,]" as a part of the State's implementation plan. Id. On March 19, 2003, the EPA withdrew this proposed final rule, which never became effective, because the EPA "believe[d] that significant chances would need to be made to the July 2000 rule before it could represent a workable formula for an efficient and effective TMDL program." 68 Fed.Reg. 13608 (Mar. 19, 2003). Thus, the relevant regulations related to the Act have remained unchanged since the inception of this lawsuit.

B. Cordova Creek

Cordova Creek ("the Creek"), the body of water that is the subject of this litigation, is a high mountain stream located in north Central New Mexico. Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment ("Pl.'s Mem."), II. Factual Background: The Undisputed Facts ("Pl.'s Facts") ¶ 1, at 7. Prior to 1982, the Creek's water quality was "excellent[,]" and supported fish and other wildlife. Id. ¶¶ 3-4, at 7. However, in 1982, Rio Costilla, Incorporated, a private corporation, purchased 4,000 acres of land situated along the Creek's drainage and began developing a ski resort, called the Rio Costilla Ski Valley or "Ski Rio." Id. ¶ 5, at 7. Ski Rio's development activities, which included construction of access roads and parking lots, adversely impacted the water quality of the Creek as soon as the project commenced and by 1987 the development continued to degrade the Creek's water quality. Id. ¶ 7, at 7. The degradation of the Creek's water quality impelled concerned citizens to file a lawsuit to compel the EPA to take action to improve the Creek's water quality. Id. ¶¶ 15-16, at 8-9. The lawsuit, Forest Guardians v. Browner, Civil Action No. 96-0826, resulted in a Consent Decree and Settlement agreement which established a ten-year TMDL schedule with the State of New Mexico, and this schedule was later adopted by the New Mexico Environmental Department ("NMED") pursuant...